A weblog for students engaged in doctoral studies in the field of human rights. It is intended to provide information about contemporary developments, references to new publications and material of a practical nature.

Thursday, 29 October 2009

An extremely useful handbook on the United Nations human rights mechanisms has been published by the Civil Society unit of the Office of the High Commissioner for Human Rights: http://www.ohchr.org/EN/AboutUs/CivilSociety/Documents/Handbook_en.pdf

Wednesday, 28 October 2009

Last week, I circulated a popular appeal to elect Mary Robinson as President of the European Union. She has since made it clear she is not interested. So we return to the favourite, Tony Blair. George Monbiot, in Monday's Guardian says we should back Blair: 'If the man who waged an unprovoked war in Iraq gets this job, it could be the chance to hold him to account for his crimes.' Read more: http://www.guardian.co.uk/commentisfree/2009/oct/26/making-blair-eu-president-crazyThanks to Nadia Bernaz.

Tuesday, 27 October 2009

Yesterday, the Appeals Chamber of the Special Court for Sierra Leone issued its ruling in the so-called 'RUF case'. It is listed on the Court's website, but when one attempts to access the decision a judgment from 2008 appears. I've managed to get a copy:http://www.filefactory.com/file/a07c20f/n/20091026_Sesay_et_al_Appeal_Judgment_FILED_doc.I've no particular comment for the time being. It is nearly 500 pages long, with about 4,000 footnotes. There is a lot on the doctrine of 'joint criminal enterprise', which continues to fascinate, although it appears to be on its last legs. The International Criminal Court has dropped the joint criminal enterprise approach to liability.

As most readers of this blog know, Richard Goldstone chaired the fact finding commission that recently issued its report on war crimes committed in the Gaza conflict during December 2008 and January 2009. There is a very fine interview with Richard Goldstone by Bill Moyers on Public Broadcasting in the United States: http://video.iptv.org/video/1305873886/. Judge Goldstone cut his teeth as a white South African helping to bring down the apartheid regime. Now, as a Jew and a friend of Israel he has condemned war crimes for which Israeli troops were responsible. The world should be thankful that we have people like Richard Goldstone. He had better be on next year's Nobel short list.Thanks to Brian Farrell.

Friday, 23 October 2009

Radovan Karadzic has announced that he intends to boycott his trial due to begin Monday at the International Criminal Tribunal for the former Yugoslavia (http://www.nytimes.com/2009/10/23/world/europe/23hague.html). It’s not the first time this has happened at the ad hoc tribunals. I wrote on this earlier in the year, in my article: ‘In Absentia Proceedings before International Criminal Courts’, in Göran Sluiter & Sergey Vasiliev, International Criminal Procedure: Towards a Coherent Body of Law, London: Cameron May, 2009, pp. 335-380. Here are the relevant excerpts:

‘When I came back to Dublin I was courtmartialed in my absence and sentenced to death in my absence, so I said they could shoot me in my absence.’ Brendan Behan

…

Some defendants have chosen to boycott proceedings, as a form of protest against rulings by the bench. In May 2003, a Rule was added to the Rules of Procedure and Evidence of the International Criminal Tribunal for Rwanda to address this issue:

Rule 82 bis: Trial in the Absence of Accused

If an accused refusesto appear before the Trial Chamber for trial, the Chamber may order that thetrial proceed in the absence of the accused for so long as his refusal persists,provided that the Trial Chamber is satisfied that:(i) the accused has made his initial appearance under Rule 62;(ii) the Registrar has duly notifiedthe accused that he is required to be present for trial;(iii) the interests of the accused are represented by counsel.

There is no similar provision in the Rules of the International Criminal Tribunal for the former Yugoslavia, although the principles set out in Rule 82 bis have been judged to apply to that institution.[1] There is an equivalent provision in the Rules of Procedure and Evidence of the Special Court for Sierra Leone:

Rule 60: Trial in the Absence of the Accused

(A) An accused may not be tried in his absence, unless:(i) the accused has made his initial appearance, has been afforded the right to appear at his own trial, but refuses so to do; or(ii) the accused, having made his initial appearance, is at large and refuses to appear in court.(B) In either case the accused may be represented by counsel of his choice, or as directed by a Judge or Trial Chamber. The matter may be permitted to proceed if the judge or trial Chamber is satisfied that the accused has, expressly or impliedly, unequivocally waived his right to be present. [2]

Several accused at the Special Court for Sierra Leone have boycotted the proceedings. A Trial Chamber said that

though in essence trial in the absence of an accused person is an extraordinarymode of trial, yet it is clearly permissible and lawful in very limitedcircumstances. The Chamber opines that it is a clear indication that it is notthe policy of the criminal law to allow the absence of an accused person or hisdisruptive conduct to impede the administration of justice or frustrate the endsof justice. To allow such an eventuality to prevail is tantamount to judicialabdication of the principle of legality and a capitulation to a frustration ofthe ends of justice without justification.[3]

Rule 82 bis of the Rules of Procedure and Evidence of the International Criminal Tribunal for Rwanda was adopted in the context of the refusal of an accused, Jean-Bosco Barayagwiza, to attend his trial. At the beginning of the trial, in October 2000, his counsel told the Trial Chamber of the International Criminal Tribunal for Rwanda that their client would not be attending the trial, and that he had instructed them not to represent him, all of this ‘based on his inability to have a fair trial due to the previous decisions of the Tribunal in relation to his release’. Barayagwiza personally issued a statement ‘refusing to associate himself with a show trial’ and insisting that ‘the ICTR was manipulated by the current Rwandan government and the judges and the prosecutors were the hostage[s] of Kigali’.[4]

The Trial Chamber declared that ‘Barayagwiza was entitled to be present during his trial and had chosen not to do so, and the trial would proceed nonetheless. The Chamber also stated that he would be free to attend whenever he changed his mind.’ Counsel were ordered to continue representing Barayagwiza.[5] They attended at court until February 2001, and then informed the Trial Chamber that their mandate had been terminated. A new counsel, Giacomo Barletta-Calderera, was soon appointed for Barayagwiza, and he represented Barayagwiza for the duration of the trial, but Barayagwiza never attended personally.[6]Barayagwiza unsuccessfully raised the matter on appeal, where he argued that nothing in the Statute or the Rules authorised proceedings in his absence. During the appeals hearing, his counsel suggested that the Tribunal might have brought him to court physically in order to ensure his presence at trial.[7] Barayagwiza noted that Rule 82 bis had been adopted well after his trial had begun, and could not therefore have a retroactive effect. The Appeals Chamber observed that the Secretary-General’s report of 3 May 1993 did not oppose the idea that a trial might proceed in the absence of a defendant who refused to appear. The famous reference in the report to in absentia trials was addressed to individuals who had not yet been apprehended by the Tribunal.[8] According to the Appeals Chamber, an accused person can renounce to presence at trial providing this is ‘libre, non équivoque (même si elle peut être expresse ou tacite) et faite en connaissance de cause’.[9] It noted that these were the same criteria applicable to renunciation by a suspect of the right to be assisted by counsel during questioning, pursuant to Rule 42 (B),[10] and to the validity of a renunciation by an accused person of the protection against self-incrimination.[11] The Appeals Chamber said an accused must have received notice of the date and place of the trial, and of the charges against him or her, and the right to be present at trial. Moreover, where an accused who is in custody refuses to attend, the interests of justice require that counsel be designated.[12] In the specific case of Barayagwiza, the Appeals Chamber concluded that

A citizens campaign has been started to propose former President and UN High Commissioner for Human Rights, Mary Robinson, for the new post as President of the European Union. The choice will be made by the EU Council, i.e. the representatives of the member states. The selection of Mary Robinson would send a signal that the European Union is concerned about social exclusion, racism and the protection of human rights and the new President would hopefully be able to exert some influence on European Union policies both within Europe and in the wider world. The candidate most mentioned at the moment is Tony Blair, who would not send out those signals. The European Union leaders meet on 29 October and while the appointment will not be decided on then, the discussion abut the post will begin in earnest. If there was a strong grassroots groundswell in favour of Mary Robinson, it might influence them. There is a petition to sign at www.maryrobinson.eu/petition.html and the campaign has a website at http://www.maryrobinson.eu/ where you can also sign up and add to the list of supporters on Facebook.

Tuesday, 20 October 2009

Last Friday, the War Crimes Chamber of Bosnia and Hezegovina issued convicted Milorad Trbić of genocide. Trbić was transferred to Bosnia from the International Criminal Tribunal for the former Yugoslavia in June 2007, pursuant to Rule 11 bis. The judgment will not be available for a few months. According to the press release:

On 16 October 2009, the War Crimes Chamber found Milorad Trbić guilty ofgenocide, for his participation in a joint criminal enterprise, between 12 Julyand 30 November 1995, together with Colonel Ljubiša Beara, Liutenant ColonelVujadin Popović, Lieutenant Drago Nikolić and others, which consisted of thecommon purpose and plan to capture, detain, summarily execute and bury all ablebodied Bosniak (Muslim) males from Srebrenica enclave, who were brought into theZvornik Brigade zone of responsibility. The Court found that this common purposeand plan amounted to the commission of the crime of genocide. The Courtsentenced Trbić for his participation in the joint criminal enterprise to30 years imprisonment.

Popović has been tried by the International Criminal Tribunal for the former Yugoslavia, and a judgment of the Trial Chamber is expected later this year.Thanks to Fidelma Donlon and Melissa Ruggiero.

The Grotius Centre for International Legal Studies (Leiden Law School & Campus Den Haag) has two PhD vacancies for the project ‘Post-Conflict Justice and Local Ownership’ funded by the Netherlands Organisation for Scientific Research (NWO). The project will involve research and testing of the design and management of international criminal justice. It examines rationales and methodologies of external intervention in justice responses, the societal impact of international criminal proceedings, based on analysis of the first practice of the International Criminal Court (ICC), and the contribution of the ICC to capacity-building and legal harmonisation in conflict and post-conflict situations.Fo more information: http://www.grotiuscentre.org/com/doc.asp?DocID=44 or write to Dr. Carsten Stahn (cstahn@campusdenhaag.nl) or Dr. Larissa van den Herik (L.van.den.Herik@LAW.leidenuniv.nl).

Monday, 19 October 2009

There is a report that Palestine is preparing to become a ‘member’ of the International Criminal Court: http://www.maannews.net/eng/ViewDetails.aspx?ID=232793. The report says that information has been requested from the Court with a view to carrying this out. According to article 125 of the Rome Statute, ‘This Statute shall be open to accession by all States. Instruments of accession shall be deposited with the Secretary-General of the United Nations.’ Thus, Palestine can join to the extent that it is a ‘State’. Indeed, an attempt to accede to the Rome Statute could be interpreted as a manifestation of statehood. But the Palestinian Authority is knocking on the wrong door. It is not the Court that decides who may join; this is the job of the depository, which is the Secretary-General of the United Nations. I would be very surprised if the depository were to accept an instrument of accession from Palestine. Of course, Palestine might then apply to the Assembly of States Parties which, I think, could probably override a decision by the depository.But isn’t the real problem that Palestine has not yet manifested its desire to be considered a State, or at least not recently? I am sure that if Palestine were to declare itself a State, it would be recognised by many other States very quickly. But it has to take this step first.Thanks to Michael Kearney.

I was in China on the weekend, attending the final seminar of the EU-China Project on capital punishment, and attending the launch of the International Research Centre on Death Penalty Reform, which will be hosted by the law school of the Beijing Normal University. The meeting was attended by many senior judges, government officials and academics.

The photo shows my colleague Huang Fang, who is a professor at the Law Institute of the Chinese Academy of Social Sciences. She recently received a prestigious award for the publication of a translation of my book Introduction to the International Criminal Court.

The seminar brought out all of the contradictions in the ongoing debate about the death penalty in China. On the one hand, there is more writing, publishing and research activity on the subject than ever before. Moreover, it is obvious that views continue to evolve, and that there has also been a substantial drop in the use of capital punishment in the last few years. At the same time, many Chinese experts cling stubbornly to the idea that there is great support among the people, and that the government cannot go ahead with reform until this changes.

Our colleagues at Wuhan University, together with the Max Planck Institute in Fribourg, produced a detailed public opinion survey whose results were presented during the weekend meeting. These results were analysed by Professor Roger Hood, professor emeritus of criminology at Oxford, who explained that they should encourage moves towards abolition. According to Professor Hood, the results demonstrate that there is a majority in support of capital punishment only for the crime of murder, and that there are many other indications in the survey showing that the people of China are far less enthusiastic about capital punishment than their leaders claim. In fact, the survey shows that there is much greater support for the death penalty among the professionals in the system than among the ordinary population. Professor Hood says this is a case of those engaged in the system trying to justify what they do.

The new International Research Centre in Beijing is headed by a dynamic senior scholar, Professor Zhang Bingzhi, and we hope it will continue to lead the debate within China. Professor Hood, Professor Hans-Jörg Albrecht of Max Planck, myself and others will be involved with the Centre in an advisory capacity.

Wednesday, 14 October 2009

Iran has hanged a man for a crime committed when he was seventeen years of age: http://www.upi.com/Top_News/International/2009/10/13/Iran-hangs-man-sentenced-when-17/UPI-23491255453386/. This violates Iran's obligations under article 6(5) of the International Covenant on Civil and Political Rights, article 37(a) of the Convention on the Rights of the Child and under customary international law as codified in the Safeguards adopted by the Economic and Social Council in the early 1980s.Iran is probably the only country in the world to persist in such violations. The United States of America ceased executions for juvenile offences in 2005, following a ruling of the Supreme Court.The prohibition on executions for juvenile crimes has become a universal norm since it was first set out in the fourth Geneva Convention in 1949. It isn't the only problem Iran has with modern human rights standards, but it is certainly a flagrant one.

Monday, 12 October 2009

This past weekend, a group of lecturers and doctoral students from the Irish Centre for Human Rights met with our colleagues at the Centre for Civil and Human Rights of the University of Notre Dame, in South Bend, Indiana. It was the first of what we plan as an annual meeting of the two Centres. The purpose is to discuss and debate emerging issues and developments in human rights in a relatively unstructured and collegial manner. We are already planning next year's event, to take place in Galway on 16-18 October. Our hope is to enlarge the circle beyond our two institutions, and that academics, officials, journalists and activists who are interested in human rights will join us for these meetings.

This year's exchange heard presentations on post-conflict justice in Rwanda, the Obama administration's record on counter-terrorism measures, the influence of the Universal Declaration of Human Rights, legal issues concerning the use of combat drones, the abolition of the death penalty and the record of the ad hoc international criminal tribunals. A bit eclectic, but that was always the general idea. Presenters include Doug Cassel, Mary-Ellen O'Connell, Steven Smith, Shane Darcy, Ximena Medellín, Meg de Guzman, Jimmy Gurule, Gerald Gahima, Brian Farrell, Sean O’Brien and myself.

We were honoured by the attendance of Father Ted Hesburgh, founder of the Notre Dame Centre and former President of the University. The photo shows Father Hesburgh with Dr Vinodh Jaichand, deputy director of the Irish Centre (middle) and myself.

We're grateful to our hosts at Notre Dame for a fabulous weekend, and hope we can be as courteous when they visit us next year.

Thursday, 8 October 2009

The National University of Ireland, Galway has jumped to 243rd position in the World University Rankings, which are issued annually by the Times Higher Education Supplement. According to last year’s ratings, Galway went from 484th place in 2007 to 358th place. So this year we leapt another 125 places. It places NUI Galway in the top 95th percentile of universities in the world. NUI Galway scored the biggest gain of all of the Irish Universities. We were also ranked 272nd in the top 300 in the Arts and Humanities Area.We’re not (yet) in the same league as Harvard and Oxford, but we’re an energetic and dynamic institution that prides itself on its centres of excellence, one of which is the Irish Centre for Human Rights.

Monday, 5 October 2009

The Law Society is looking for a 'human rights executive' to work three days per week. The job is described as: 'C0ompleted or be undertaking a PhD in a field relevant to access to justice aqnd human rights...' See: http://www.mediafire.com/?dcy55bmm1u2.

The Editorial Team

W. Schabas, Y. McDermott, J. Powderly, N. Hayes

William A. Schabas is professor of international law at Middlesex University in London. He is also professor of international criminal law and human rights at Leiden University, emeritus professor human rights law at the Irish Centre for Human Rights of the National University of Ireland Galway, and an honorary professor at the Chinese Academy of Social Sciences, in Beijing and Wuhan University. He is the author of more than 20 books and 300 journal articles, on such subjects as the abolition of capital punishment, genocide and the international criminal tribunals. Professor Schabas was a member of the Sierra Leone Truth and Reconciliation Commission. He was a member of the Board of Trustees of the United Nations Voluntary Fund for Technical Cooperation in Human Rights and president of the International Association of Genocide Scholars. He serves as president of the Irish Branch of the International Law Association chair of the Institute for International Criminal Investigation. He is an Officer of the Order of Canada and a member of the Royal Irish Academy. Here is the full c.v.

Dr YvonneMcDermott is Senior Lecturer in Law at Bangor University, UK, where she is also Director of Teaching and Learning and Co-Director of the Bangor Centre for International Law. Yvonne is a graduate of the National University of Ireland, Galway (B. Corp. Law, LL.B.), Leiden University (LL.M. cum laude) and the Irish Centre for Human Rights (Ph.D.). Her research focuses on fair trial rights, international criminal procedure and international criminal law. She is the author of Fairness in International Criminal Trials (Oxford University Press, 2016).

Niamh Hayes has been the Head of Office for the Institute for International Criminal Investigations (IICI) in The Hague since September 2012. She is about to complete her Ph.D. on the investigation and prosecution of sexual violence by international criminal tribunals at the Irish Centre for Human Rights, National University of Ireland Galway. She previously worked for Women's Initiatives for Gender Justice as a legal consultant, and as an intern for the defence at the ICTY in the Karadzic case. She has lectured on international criminal law and international law at Trinity College Dublin and, along with Prof. William Schabas and Dr. Yvonne McDermott, is a co-editor of The Ashgate Research Companion to International Criminal Law: Critical Perspectives (Ashgate, 2013). She is the author of over 45 case reports for the Oxford Reports on International Criminal Law and has published numerous articles and book chapters on the investigation and prosecution of sexual and gender-based violence as international crimes.

Joseph Powderly is Assistant Professor of Public International Law at the Grotius Centre for International Legal Studies, Leiden University. Between September 2008 and January 2010, he was a Doctoral Fellow/Researcher at the Irish Centre for Human Rights, where he worked, among other projects, on a Irish Government-funded investigation and report into the possible perpetration of crimes against humanity against the Rohingya people of North Rakhine State, Burma/Myanmar. He is currently in the process of completing his doctoral research which looks at the impact of theories of judicial interpretation on the development of international criminal and international humanitarian law. The central thesis aims to identify and analyze the potential emergence of a specific theory of interpretation within the sphere of judicial creativity. Along with Dr. Shane Darcy of the Irish Centre for Human Rights, he is co-editor of and contributor to the edited collection Judicial Creativity in International Criminal Tribunals which was published by Oxford University Press in 2010. He has written over 80 case-reports for the Oxford Reports on International Criminal Law, as well as numerous book chapters and academic articles on topics ranging from the principle of complementarity to Irish involvement in the drafting of the Geneva Conventions. In December 2010, he was appointed Managing Editor of the peer-reviewed journal Criminal Law Forum. His research interests while focusing on international criminal and international humanitarian law also include topics such as the history of international law and freedom of expression.

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Interested in PhD studies in human rights?

Students interested in pursuing a doctorate in the field of human rights are encouraged to explore the possibility of working at Middlesex University under the supervision of Professor William A. Schabas and his colleagues. For inquiries, write to: w.schabas@mdx.ac.uk.